Friday, September 28, 2012

In Connecticut this week, another mistrial was declared in another sexual assault case after another expert witness, Child Guidance Center's Dr. Larry Rosenberg, improperly testified that the accuser was credible. See here.

We recently reported a similar case in Texas where an expert improperly testified that a sexual assault accuser was almost certainly credible. See here.

In this latest case, a Norwalk, Connecticut police officer, Anthony Santo, was accused of sexually assaulting the daughter of a close friend. The accuser, now 20-years-old, testified that she could not remember exactly when it happened, but believed that when she was 13 during a power outage, Santo allegedly put his hand underneath her pajamas and touched her genitals. Santo denied it and explained that the girl had told him that a boy had groped her.

The prosecutor called Rosenberg, clinical director of the Child Guidance Center, to the stand to testify about how common it is for children to keep the allegations of sexual assault to themselves. Astoundingly, according to the news report, Rosenberg said that 93 percent to 95 percent of the children who alleged sexual abuse are being truthful. And, he said, the vast majority of the remaining five to seven percent were found to be coached into false allegations by their parents, who were involved in some sort of custody dispute or divorce. Because there were no allegations of custody or divorce implications in the trial, the inference that the girl was a victim of sexual abuse was inescapable.

"Essentially what he was saying was the woman was telling the truth," the judge who declared the mistrial concluded. Substantial damage was done to the defendant's case by allowing this testimony.

The prosecutor in the case, Senior Assistant State's Attorney Maureen Ornowski, called the judge's decision to toss the trial "draconian" and "extremely unfair to the victim." The "victim," of course, is the accuser, not the man whose due process rights were summarily taken from him by the musings of an expert witness.

Ironically, just last week, Santo's attorney, Gary Mastronardi, won an appeal in the state Supreme Court involving the same issue. That case is State v. Favoccia, and it is reported at 2012 Conn. LEXIS 345. There, the Connecticut Supreme Court agreed that the trial court abused its discretion by allowing an expert witness to indirectly testify about the truthfulness of a complaint's allegations in another sexual abuse case. The expert witness testified to the effect that the complainant exhibited certain behaviors that were consistent with those of sexual abuse victims. The appellate court determined that the statements impermissibly vouched for and bolstered the credibility of the complainant. The jury is responsible for determining questions of credibility, not a witness paid by the state, which is seeking to incarcerate the man on trial.

In this week's mistrial, the purported expert's testimony not only was prejudicial, it was misleading. While some studies show that only a small percentage of sex claims are definitively false, it is dishonest to state that only five to seven percent of all claims are false without also explaining that only a relatively small percentage of such claims are definitively sexual assaults. In between the claims reasonably certain to be actual sexual assaults and the ones reasonably certain to be false claims is a vast gray area consisting of the majority of the claims that can neither be classified as sexual assaults or as non-sexual assaults -- because we just don't know. That's the nature of these claims, where the act that gives rise to it is almost always committed in private. See our discussion of Dr. David Lisak's study on the subject here. It is reasonable to assert that while the number of false and wrongful claims is unknowable, the percentage is likely higher, and perhaps considerably higher, than 5 to 7%. A fairer way to describe it is to talk only about the claims where we know definitively whether a sexual assault occurred (a figure much, much lower than 100%). Of those claims, the percentage of claims that are definitively false is much higher than five to seven percent. If the expert was intent on talking about false claims, he should have told the entire story, not just the part that paints the presumptively innocent man as guilty.

Thursday, September 27, 2012

I'm still trying to figure out how, without an investigation, they can determine a threat to safety has arisen. Wouldn't the investigation actually show that? Or, in this case, show that there was no threat? So a needlessly inflammatory notification was sent out, when it wasn't warranted. The other item that isn't clear from the article is this: was a notification sent out that the allegation was false?The report of an alleged sexual assault on the Tyler Junior College campus over the weekend has proved to be inaccurate and unfounded, TJC officials said today.

New federal guidelines require campus police to send out emergency notifications first and investigate later whenever a potential threat to safety arises. Therefore, TJC immediately released a campuswide alert through its emergency notification system Sunday evening, even as facts were still being gathered.

Further investigation by TJC Campus Police revealed the allegation of a sexual assault to be unfounded.

Following a thorough review of evidence acquired through additional interviews and footage from campus surveillance cameras, it was confirmed that no sexual assault occurred.

"I am proud of the professionalism of our campus police who take the safety of our students, visitors and employees very seriously," TJC President Dr. Mike Metke said. "I was pleased by both their initial response and their ability to investigate and produce a factual finding in a short period of time that there was no sexual assault on the TJC campus."

Metke added that TJC has taken every measure possible to provide for the utmost security and safety of its students and employees.

"It's been my goal to make sure TJC is the kind of college I'd want my children and eventually, my grandchildren, to attend as their first choice in higher education," he said. "I feel stronger than ever that TJC is the best choice and best value available for them and for all the people TJC serves."

New Zealand scraps plans to introduce inquisition for sensitive court cases involving children or victims of sexual assault. The proposed system, as opposed to the adversarial system in effect, would enable judges to interview victims of sexual crimes, get assistance from specially trained jurors, or come to a verdict without a jury.

The inquisitorial model was designed to protect victims or children from the pressure and stress of appearing in the courtroom. Legal experts were wary of a change to New Zealand's adversarial process because it could breach a Bill of Rights provision that anyone accused of an offence that carried a jail term of three months or more could elect trial by jury.

Monday, September 24, 2012

New Year's Eve, 2009. As the rest of the country relaxed in the sun, a Nelson man faced the darkest of accusations. He has the dubious distinction of being what the media calls "a former prominent person", and his stepdaughter accused him of sexual abuse in their own home. She was 13 at the time, and said the man indecently touched her breast while watching television in the lounge - and again, later, in her bedroom.

The man said nothing happened. That the kids and he watched a movie, went to bed, and he spent the evening tidying up the lounge. But police arrived to arrest him the next night and the man could not return home for nearly three years. The drive to the police station, he said, felt like "falling back into an abyss".

During the trial the man's lawyer accused this girl, who must now be barely 16, of convincing herself that something happened, of going too far with the story to turn back, or perhaps of dreaming the whole thing. She says she did not.

Yesterday, the jury unanimously found him guilty. For the average person following the case this week, it was impossible to read the daily news reports and predict what decision they'd make. There was no physical evidence; it seemed to come down to his word against hers.

It's over now. But as I read the news reports I wondered about the possibility of innocence, and what it would be like to be accused, Kafka-esque, of a crime you'd never committed; particularly a crime as gross as this. When I was at school, one male teacher simply disappeared amid similar swirling rumours. I never found out if they were true or not; in some ways, it doesn't matter. Once the accusation has been made, it sticks. The feeling must be akin to being buried alive.Mangakino man Leonard Joseph was falsely accused of raping a 14-year-old girl, and was acquitted in 2010. He told the Waikato Times he'll never be able to shake the stigma.

Married with seven children, the charges "destroyed" him and all the work he'd been trying to do for the Mangakino community. He used to spend five nights a week teaching kapa haka, hip-hop and rugby league teams, but it ended when he was arrested and confined to his mother's house on a 24-hour curfew.

He spent 17 weeks in Waikeria Prison before being released on electronic bail. "That is just one charge you don't want to go to jail for," he told the paper. He was verbally threatened numerous times and watched as other men around him were beaten and raped. "Mentally it destroys a person. It almost killed me."

I know of many men in teaching and caring roles who fear the same. My father, a phys-ed teacher for 20 years, used to end after-school detention early when there was just one girl and him, so they wouldn't be left alone.

Another male teacher I know always makes sure that if he has to speak to a girl after class the door is open and a friend sticks around. It would take one teen grudge to ruin him and his family, he says.

Then there's Sydney fireman Johnny McGirr, who was on a Virgin Australia flight from Brisbane to Sydney last month and was mortified when flight attendants asked him to move from his seat next to two unaccompanied boys - airline policy, they said.

The same thing happened to a male nurse sitting next to a 10-year-old girl on a Qantas flight. Look at the awful message such a policy sends young women - that every man is a potential abuser, if only they had the opportunity.

This man has name suppression. It protects the victim, though the public's hunger is always to find out the identity of the accused. I do not want to undermine victims of rape and sexual abuse, and nor do I want to suggest this girl was lying. But I do wonder how many good and decent men - coaches, carers, teachers and fathers - live with this persistent worry on their shoulder; going between work and home every day with the fear that it will happen to them.

Friday, September 21, 2012

A disturbing judicial decision was recently handed down by Arizona's Court of Appeals that should be of concern to the University of Arizona community. A male student was suspended by the university after being found guilty of sexual assault by the school's vice president of student affairs because the vice president found that the male student knew his accuser "might not have been able to voluntarily consent" to sexual relations due to her alcohol consumption.

If, indeed, the male student was not certain that his accuser was capable of voluntarily consenting to engage in sex, it seems clear that he should not have proceeded with the act, and that if he plowed ahead in the face of such uncertainty, he acted both recklessly and boorishly. But that is not the issue here. At issue here is whether the male student committed a punishable offense. Here, that seems highly questionable. The male student was found guilty of sexual assault based on nothing more than a possibility that the accuser did not consent. Such a holding is an affront to the most rudimentary notions of due process and an intolerable intrusion on the rights of the presumptively innocent.

According to the decision of the Arizona Court of Appeals, University of Arizona student Jeffrey Patterson and an unnamed female student attended a frat party at the university and then engaged in sexual conduct. Mr. Patterson contends it was consensual, the female student says it wasn't. The female student later asserted "that she had felt an immediate and unusual effect upon drinking alcohol at the party with Mr. Patterson, and did not remember consenting to the sexual intercourse with him that followed. Instead, she recalled excusing herself to a bathroom to get out of a room with Patterson and telling him she was very tired and wanted to go home. She also stated that the day after the incident, she had discovered bruises on her legs, and her vagina was very sore where Mr. Patterson had bitten her." Patterson v. Arizona Board of Regents, 2012 Ariz. App. Unpub. LEXIS 980 at *2 (August 15, 2012).

The female student filed a complaint with the dean of students. As a result, Mr. Patterson was charged with two violations of the university's student code of conduct: (1) endangering, threatening, or causing physical harm to any member of the university community; and (2) sexual assault.

After an investigation, the assistant dean suspended Mr. Patterson for two academic years, citing violations of both charges. Mr. Patterson appealed to the university's hearing board, an advisory body for the vice president of student affairs, who holds final fact finding and disciplinary authority.

The hearing board heard the testimony of numerous witnesses and found that Mr. Patterson was guilty only in connection with endangering, threatening, or causing physical harm to a member of the university community. The hearing board did not find Mr. Patterson guilty of sexual assault. Accordingly, the hearing board rrecommended a reduced sanction.

The vice president, however,rejected the hearing board's determination regarding sexual assault; she found that Mr. Patterson was guilty of sexual assault. Here are the words the vice president used: Mr. Patterson knew the accuser "might not have been able to voluntarily consent" to sexual relations due to her alcohol consumption. (Emphasis added.) Despite the vice president's ruling, she agreed to reduce Mr. Patterson's suspension to one academic year.

Mr. Patterson filed suit against the university. He claimed that the vice president's finding that he knew his accuser "might not have been able to voluntarily consent" was insufficient, as a matter of law, to support a holding that he committed sexual assault. He cited by analogy Arizona legal authorities holding that to be found guilty of such a charge, a defendant must know his sexual contact was without the consent of the victim. Mr. Patterson asked that the matter be remanded so that the university could determine an appropriate sanction for the "minor violation" relating to physical harm.

The Court of Appeals refused to order the relief Mr. Patterson requested, noting that "we might agree with Patterson that the vice president recited an incorrect legal standard in her suspension order," but even if she got it wrong on that point, she "arguably" would have imposed the same sanction. The court explained that the procedural standards in the university setting are "more relaxed" than in a court of law.

The court's decision, and its rationale, are unfortunate. While the holding reflects the usual judicial reluctance to upset orders entered in college disciplinary proceedings, the court could have sent a strong message to institutions of higher learning about zealously respecting the rights of its students. Instead, a male student will go through life branded as a sexual assaulter based only on a possibility that his accuser was incapable of consenting.

A finding of guilt based on a mere chance that the accuser might have consented is the sort of result we might expect in a third world dictatorship. That we are seeing more and more such holdings in America's vaunted institutions of higher learning is a chilling indication that inappropriate forces are impeding the proper administration of college disciplinary claims.

A Fairhope woman who said she was sexually assaulted by a Spanish Fort police officer has been charged with filing a false report to law enforcement, a Baldwin County Sheriff’s Office statement said. Lisha Michelle Weaver, 31, told investigators that she was assaulted by the officer after being arrested at 5 a.m. Saturday at Drifter’s Lounge in Spanish Fort. She was charged with public intoxication and resisting arrest at that time.

At about 11 a.m., she told Baldwin County Sheriff’s Office investigators that the assault took place in the police car while she was being taken to the Daphne city jail, the statement said.

Weaver was taken to Thomas Hospital, where she was examined. Investigators interviewed witnesses and reviewed the video recording system in the patrol car. They determined that she had been taken to the jail and that the officer had not stopped the car as Weaver had claimed, the statement said.

She was also charged with rendering false alarm.

Weaver was released from the Baldwin County Corrections Center on $2,000 bail, according to jail records.

Thursday, September 20, 2012

An inmate at the Erie County Correctional Facility has been charged with falsely accusing a corrections officer of sodomizing him, sheriff's officials said Friday.Investigators said the inmate, Salvatore Andrews, 38, of Albion, made the false report so that he could be transferred to a jail closer to his wife in Albion.

He has been charged with felony counts of second-degree perjury and making a false statement in addition to a misdemeanor charge of making a false statement.

Andrews was in the Correctional Facility in Alden serving a six-month sentence for failure to pay child support.

He had made an allegation that he was forcibly sodomized by a corrections officer Aug. 29, officials said.

However, an investigation by Senior Detective Jim Hatch of the Sheriff's Office Detective Bureau and Chief Scott Joslyn of the Division of Professional Standards resulted in several findings that led them to believe that Andrews was lying:

Authorities at the Erie County Medical Center, who examined Andrews, found no "medical evidence" of a sexual assault

An inmate signed a sworn statement saying that a few days before the alleged attack, Andrews asked him if he thought fabricating the story would get him moved to the Orleans County Correctional Facility, which would be closer to his wife.

Detectives checked a log of Andrews' calls and visitors, and discovered he did not report the incident to them.

Andrews also alleged the accused corrections officer worked a midnight shift. A check of work records showed the officer never worked the midnight shift and that he had signed out an hour before the assault allegedly occurred.

A computer program that tracks each time a cell door is opened showed Andrews' door was closed at 9:15 p.m. Aug. 29 and wasn't reopened until breakfast time. Andrews had said the assault took place at about midnight.

Wednesday, September 19, 2012

We are sending a link to this post to Professor Danielle Wozniak of the University of Montana, one of the creators of the mandatory sexual assault video series at the University of Montana. We do so respectfully, because we find most of the information in the videos to be helpful and unobjectionable. Our concerns are limited to a few, critical areas that deserve serious airing in the public discourse.

In response, Associate Professor Wozniak, one of the creators of the videos, dismissed out of hand the concerns raised without addressing any of them, asserting that the information in the videos is "standard and accepted."

We respectfully disagree. We've demonstrated that certain critical information contained in the videos is unjust to presumptively innocent persons accused of sexual misconduct. We respectfully invite Professor Wozniak not to dismiss our concerns with conclusory assertions but to specifically address the matters we raise. Show us how we are wrong.

Show us how, for example, it comports with due process to force students who will adjudicate sexual assault hearings to watch a video put together by experts that posits "MYTH -- People lie about sexual assault."

Show us how the assertion that "guilt tripping" is sexual assault comports with our jurisprudence's long-accepted views on duress and coercion, and how turning "guilt tripping" into a punishable offense could possibly pass due process muster.

Tell us if you agree with Dr. Lisak's research suggesting that sexual assault is not "normalized" or committed by, as feminist commentator Amanda Marcotte put it, "ordinary men who get out of control," but is, rather, perpetrated by a very small group of social deviants immune to the kind of sexual assault education contained in the videos.

Our concerns, which are supported by widely accepted sources and, we think, meticulous reasoning, are limited to the specific areas we write about.

We've been wrong in the past and have corrected ourselves; we'd gladly do so here, too, if that proves to be the case. By the same token, we would hope that if Professor Wozniak is not able to answer the matters we address, that she would take reasonable measures to modify the videos accordingly.

Tuesday, September 18, 2012

A new sexual harassment and assault policy at GW gives accusers the protection of confidentiality. "The previous policy, last amended in 2005, forced complainants to disclose their identities at the formal hearing stage.

“The whole idea that a woman who has been sexually assaulted has to go in and confront the accuser hurts the healing process. The University’s code has to reflect those kinds of changes,” Chair of the Faculty Senate’s executive committee Michael Castleberry said.

This is among the most absurd, unjust, and frankly frightening college sex policies we've ever seen, and that is saying a lot.

We have grown weary of treating people like Michael Castleberry seriously. We know nothing more about him than what is written here, but his comment is as stupid as any we've ever read.

The purpose of a hearing is to do justice, Mr. Castleberry. The fact that you think it's all about "healing" the accuser tells us all we need to know about you. Every male student at GW should call to have you dismissed because, based on that comment, you are a threat to them.

But one year after four charges of sexual assault on a child brought against the former Fort Collins resident were dropped, Carnes remains in a legal battle to have his arrest and court records made secret.The felony allegations are easily found through an online background check. Carnes said the presence of the allegations has made it difficult for him to find a job and a place to live.

“It’s the 21st-century version of the ‘Scarlet Letter,’ only worse,” said Scott Robinson, a Denver defense attorney and 9News legal analyst not involved with the case, referring to the “sex offender” label. “Certainly, you’re considered to be the scourge of society.”

The Larimer County District Attorney’s Office had the charges dismissed after the judge determined the child, then 6, was too young to testify against Carnes.

But prosecutors hope to bring the case back when the girl is older, according to a request to keep the records open in Larimer County District Court.

Carnes has always maintained his innocence and pleaded not guilty to all counts. He said in court filings that the allegations came during an “acrimonious” divorce and custody dispute.

The local court denied his request to seal the records. Carnes has appealed, and the case is now in the Colorado Court of Appeals. Fort Collins Police Services and the Colorado Attorney General’s Office also have asked courts to keep the records open.

★ ★ ★ ★ ★

Conviction on just one count of sexual assault on a child could put Carnes in prison for life. But the District Attorney’s Office says the public has a right to know about the serious allegations against him.

“The nature of the crimes is of such gravity that the public interest in retaining the records is extremely high. Unlawful sexual behavior against a child is a matter of extreme significance that most individuals would want to assess before involving (Carnes) in their affairs,” the District Attorney’s Office stated in a court filing.

Judges now must weigh public transparency against future damage to a presumably innocent man’s reputation. The allegations and associated social stigma are serious enough to interfere with Carnes’ basic needs to make a living and have shelter. But if they’re true, keeping them secret could put other children in danger.

The girl was between 3 and 5 years old when the incidents were alleged to have occurred, police said in court. Prosecutors had 12 statements they’d planned to use in trial, but the court ruling kept half of them out of evidence, including recorded interviews with the child at the Child Advocacy Center.

“I have to be kind of cynical about the idea that, years later, when the child does understand the meaning of the oath, they’ll have a reliable recollection of what happened,” Robinson said. “What will happen is a reliable recollection of what people told them happened.”

The allegations include multiple instances of physical contact, not sexual intercourse. There was one alleged victim, for whom Carnes was in a position of trust.

Carnes, through Greeley attorney Sean Lacefield, declined to speak with the Coloradoan for this article.

After his arrest in 2010, Carnes lost his job as an independent broker-associate affiliated with Infinity Group Realty of Fort Collins. After the dismissal, he’d applied for multiple jobs for which he was well-qualified but was denied each time, with no reason provided. He suspected it was because of the charges, according to the defense. He was “ostracized” in his neighborhood and had to move away. He was able to find a place to stay with a friend.

Carnes was later able to find work through an employer who’d “also experienced false allegations of child abuse” under similar circumstances, was sympathetic and hired him, according to his defense.

★ ★ ★ ★ ★

Often, people alleged to have committed sexual assault never end up in court.

“Prosecutors have to think about whether they can convince a jury, and unfortunately that jury is made up of the general public,” said Erin Jemison, executive director of the Colorado Coalition Against Sexual Assault.

She said there are many misconceptions about sexual assault and few cases ever have direct eyewitnesses. But once a case is filed, she said it’s unusual for it to be dropped after the alleged victim is found incompetent to testify.

“Usually, prosecutors find a way around that,” she said.

Pam Russell, spokeswoman for the Jefferson County District Attorney’s Office, said it’s “pretty rare” for such cases to be dismissed after the child was found incompetent to testify.

A Larimer County district attorney spokeswoman said no attorneys were available to comment on the criminal or civil cases involving Carnes.

★ ★ ★ ★ ★

The appeals-court process regarding sealing the records will probably be an “uphill battle” for Carnes, as judges would have to find an abuse of discretion with the local court, Robinson said.

Local prosecutors are joined in their fight to keep the records open, as Fort Collins Police Services through the city attorney’s office filed an objection to sealing the records, supporting the DA’s arguments.

Carnes, who now works in Denver for a commercial real estate company, has faced other allegations of violent crimes.

He pleaded guilty to disorderly conduct related to 2010 accusations of harassment of a woman with whom he’d had an intimate relationship, according to court records. The charge was dismissed after he completed a one-year deferred sentence.

He is scheduled for a Nov. 13 jury trial on an accusation of assault for an alleged July 2012 incident in Denver.

While serious, that charge lacks the full peril and uncertainty of four sexual assault charges — and potential associated life sentences — he may one day have to defend against.

That day could come in a matter of years or decades. It may never come.

Sexual assault on a child in Colorado has an unlimited statute of limitations, so there’s no firm deadline for prosecutors to re-file the case.

“You can understand why prosecutors want something on his record, in case there are other allegations against him,” Robinson said. “And you can’t blame him for wanting to get it off his record.

A Nottingham woman who falsely claimed three men had raped her has been jailed for two years.

Rosie Dodd, 20, of North Sherwood Street, was sentenced at Nottingham Crown Court on Monday after lying to police that three men had raped her in June last year.

She claimed the men - aged 21, 23 and 25 - assaulted her at an address in Clifton in the early hours of Saturday 4 June.

She said she had gone back to a house with the men, who she had met while out in Nottingham, and they had each raped her.

They were arrested on suspicion of rape and spent a total of nearly 50 hours in police custody before being released on bail.

They maintained that Dodd had willingly had sex with them.

After carrying out further enquiries, police began to have concerns about Dodd’s account and, when challenged, she admitted that she had actually had consensual sex with the men and had made up the rape claims because she regretted it.

She was charged with perverting the course of justice, to which she pleaded guilty at a previous hearing.

Detective Constable Gina Farrell, who led the investigation, said: “We take every report of rape and sexual assault extremely seriously, just as we did in this case. But it soon became apparent that there were inconsistencies with Dodd’s account.

“The three men accused of rape were quite badly affected by the damaging accusations and Dodd has never shown an ounce of remorse for what she put them through.

“The time our specially-trained officers spent with her could have been spent with someone who really needed our help.”

Detective Inspector Stephen Waldram, head of the city Rape Investigation Team, added: “People lie that they’ve been raped for a multitude of reasons - like having regrets about having sex with a person, or as a way of getting back at someone.

“There is no justification for lying about something so serious and incredibly damaging and police actively investigate a false claim just as thoroughly as a genuine one to ensure innocent people are not convicted for something they didn’t do.

“It’s important to stress that anyone who contacts us to say they have been assaulted will be treated with the sensitivity and respect they deserve.

“It can be incredibly difficult for victims of rape to come forward to police and tell us what’s happened to them, which is why it’s so important for us to prosecute those who take up our time by lying to us.

“I would urge genuine victims to come forward and tell us if they have been raped or sexually assaulted. Only then can we begin to bring those responsible to justice.

“And I would remind anyone considering making a false report to think again. We carry out extremely thorough and in-depth investigations and their lies will be exposed.”

A woman who has spent twelve years behind bars for sexually assaulting her two nieces in 1994 may be set free after one of the girls is now claiming it never happened.

Elizabeth Ramirez was sentenced to 37-and-a-half years prison and her three friends were given 15 years after the two children, then aged 7 and 9, told police the women forced them into a debauched, orgy-like nightmare.

But one of the girls, now 25, has recanted the serious claims that put her aunt and friends Kristie Mayhugh, Anna Vasquez and Cassandra Rivera behind bars so many years ago, according to the San Antonio Express-News.

'I want my aunt and her friends out of prison,' the younger niece, who wanted only to be known as Stephanie, said.

'Whatever it takes to get them out I'm going to do. I can't live my life knowing that four women are sleeping in a cage because of me.'Ramirez and Rivera were just 20 when they were arrested and friends Vasquez and Mayhugh were 19 and 22 respectively.

None of the women had ever been in trouble with the law and the women have always vehemently denied the claims.

Ramirez was labeled the ringleader by her nieces and was handed a prison term more than double that of her friends.

She therefore has the most to gain from an exoneration in that it would free her from a sentence that doesn't end until 2034, when she would be 60 years old.

Rivera, 37, has never has held her one-year-old granddaughter, the Express-News reported while Mayhugh and Vasquez have missed the funerals of loved ones. Ramirez, 38, who was pregnant at the time she was accused, hasn't seen or spoken to her son since going to prison when he was two.'I never want to be bitter and angry,' Ramirez said in a prison interview. 'Regardless, God always says you gotta love and you've got to forgive.'

The women didn't believe Stephanie recanted the accusations until their attorney showed them a typed summary of his meetings with the young woman.

'At first I was like, "Are you serious?"' Ramirez said. 'I didn't think they had anything on paper.'

But Stephanie's change of heart may not ultimately lead to the legal exoneration of the women and they face a long court battle to clear their names.

However, the friends are quietly confident justice will be done.

'I know the charges against us are not taken lightly. But can they please keep looking into this?' said Vasquez, tears welling in her eyes.

'Maybe it's been put into [Stephanie's] heart to finally tell the truth. I thank God that she's come forward. They painted us as monsters.'

Stephanie had told police that her aunt and her friends had violently turned on her when she and her sister were visiting Ramirez's one-bedroom apartment in the summer of 1994. But she now says that never happened.

According to the Express-News, the nieces described to police and later to jurors how the women called them into the apartment, where they were getting drunk and smoking pot, two of them lounging around topless, and held them by their wrists and ankles, repeatedly violated them, threatened to kill them and their families, then let them take a shower and go about their day.

But Stephanie now says the visit was uneventful, even 'boring.'

First Assistant District Attorney Cliff Herberg told the news website that it's too early for him to take a position on the case. But he said their ears were open.

'We are more than willing to listen to anything they have to say,' Mr Herberg said. 'It's paramount that justice is done, whatever that is.'

Stephanie revealed that her recantation has ruined her relationship with her sister, who hasn't been named. She added that she hasn't spoken to her aunt since she was imprisoned.

'Does she know I'm trying to help?' Stephanie asked a reporter. 'I can't take back what I did, but if I could talk to all of them in one room I would just say I'm sorry. I'm sorry for ruining them.'

A MAN wrongfully accused by police of a string of terrifying sex attacks in western Sydney says the ordeal has destroyed his life and left him suicidal.

Joey de Mesa, now 27, became known as the "buck-tooth rapist" after police charged him with the attacks on six teenage girls between April and June 2008.

When the DNA evidence cleared him, Mr de Mesa thought the nightmare bungle was behind him.

But four years on, he has turned to The Sunday Telegraph in sheer desperation, saying he cannot escape the slurs and lies about his character.

"It's so difficult for me to get a full-time job. I've tried but every time I get a job, I lose it," said fed-up Mr de Mesa, adding that he has also lost count of the number of job knockbacks.

Mr de Mesa fears employers have Googled his name and found out about his past and then let him go "without good reason".

"Who knows if they do background checks. A lot of people just question me and they start talking," Mr de Mesa said. "They approach me and say, 'I know you from somewhere, I've seen your face.' A lot of people do mention it.

"I love work. I've applied for work like wardsman in a hospital, for example."

He has held four warehouse jobs in western Sydney in the past four years, the most recent being as a labourer at a stationery company where he lasted just two weeks. "I was told there wasn't enough work."

His long-time partner Marcianne Mendiola, 23, said he was being discriminated against because it wasn't his performance that was lacking.

"He's always in and out of jobs," Ms Mendiola said.

Mr de Mesa says his life was torn apart when one of the victims incorrectly identified him after seeing him on a train and CCTV footage of him was released through the media.

He spent 48 hours in a cell before DNA evidence cleared him and he was released.

The real culprit, father-of-three Arvin Longabella, then 23, was arrested two weeks later and sentenced to 17 years behind bars for 15 offences against seven victims.

At the time of his arrest, Mr de Mesa was working at a fruit market in Edgecliff, but his employer let him go.

"Sometimes I think the easiest thing to do is to kill myself," he said.

"I've avoided everyone. I have no more friends. My old friends would mention it to me. They would say (you're): 'the buck-tooth rapist'."

His mother suffered a stroke after being interrogated by police in her house following his arrest, he said.

"My mum was sitting for 18 hours, just stiff like a log."

Mr de Mesa knows he's made mistakes - at the time of his arrest he was on bail for kicking a man during a late-night fight on June 29, for which he recently finished serving a two-year good behaviour bond.

But he wants a clean slate and says the first step is to expunge the sex attacks arrest from his criminal record.

A police spokeswoman said police "spoke with the man and his family immediately after his release and issued a personal apology" - which Mr de Mesa denied ever happened - "and consulted with them (Mr de Mesa and his family) in relation to a subsequent media release, which announced that all charges were being withdrawn."

Friday, September 14, 2012

A woman who falsely accused him of rape was jailed for 15 months at Manchester Crown Court today.Janet Higginbottom, 37, of Coombes View, Hyde, pleaded guilty to perverting the course of justice at an earlier hearing and was sentenced today.Police claimed the heinous crime brought undue distress and shame on the innocent man and his family, but detectives investigating the allegations soon discovered the woman’s plot.Detective Constable Ian McNabb, of Longsight CID, said: "Higginbottom falsely accused a man of raping her, when in reality he was at home when the alleged offence took place.“Due to her lies, not only did this man have to endure the shame of being arrested in front of his partner, but he also spent 11 hours in a police cell and had to deal with the associated stigma of being accused of such a grave offence. “Thankfully though, our thorough inquiries were quickly able to establish the truth. But a lot of police time, effort and money was wasted on this false rape investigation when it could have been better spent helping genuine victims of crime."In the early hours of November 26 2011, Higginbottom told police for 20 minutes that she had been raped in Levenshulme by a man she knew and received specialist support from officers.She claimed the man had followed her home, raped her on the street and then driven off – she even provided the registration number of his car.A thorough investigation was launched immediately to find the suspect and the vehicle and hours later the man was arrested at his home address and his car was seized.The alleged crime scene was guarded overnight by an officer for almost eight hours and significant inquiries were then carried out by a team of detectives.The scene was forensically examined by a crime scene investigator, house to house enquiries were conducted on the street surrounding the scene and CCTV from the local area was trawled.Police made enquiries to trace those who had been out with Higginbottom that night and those who had been with the man accused of attacking her.The man was then interviewed by detectives after spending several hours in a police cell.The investigation highlighted a number of serious inconsistencies and when asked about these, Higginbottom later admitted she had lied about the rape and it hadn’t happened.Link: http://mancunianmatters.co.uk/content/11095319-cruel-woman-jailed-falsely-accusing-manchester-man-rape-while-he-was-bed-girlfriend

Thursday, September 13, 2012

Intolerance of rape is a noble impulse, but it should never override concerns about punishing the innocent for offenses they did not commit. At the University of North Carolina at Chapel Hill, there is a prevailing culture not only of intolerance for rapists, which is commendable, but also of intolerance for presumptively innocent men merely accused of rape, which is unconscionable. Men and women of good will attending UNC, their parents, and UNC alumni, need to be aware that extremists dominate the public discourse on sexual assault at the university.

In the wake of the Department of Education's April 4, 2011 "Dear Colleague" letter to American colleges, UNC has lowered its standard of proof for finding guilt in sexual assault cases to the "preponderance of evidence" standard. This is the lowest standard of proof used in our jurisprudence, meaning that there needs to be only a slightly more than a 50 percent likelihood of guilt to rule against the accused.

To put into perspective how far from the mainstream this policy is, consider that the Democrats in the U.S. Senate last year removed this standard from an early version of a bill to amend VAWA.

On college campuses across America, young men are taught the necessity of unambiguous consent before engaging in any sexual activity. Jon McCay, UNC's former student attorney general, said that "only a clear ‘yes’ means yes. Consent isn’t supposed to be vague.'” No sane and rational person would suggest that a young man should proceed if he is only 50.1% sure that the young woman consented. Yet, the same people who advocate the necessity for certainty in the bedroom find it perfectly acceptable for a college disciplinary board to expela young man for alleged sexual assault when it is only 50.1% sure that he is guilty.

The preponderance of the evidence mandate has not been challenged in court yet, but Hans Bader, an attorney who formerly served in the office at the Department of Education that issued the "Dear Colleague" letter, has cogently explained that it is illegal. See here.

Until this standard is challenged and declared unconstitutional, it poses a serious threat to innocent men wrongly accused of sex offenses on campus. “The consequences for someone expelled for sexual assault are enormous and will follow him throughout his life, leading to rejection by other schools, inability to qualify for the bar and a great deal of stigma,” Prof. Cynthia Bowman of Cornell said. “To impose those consequences on someone requires a rigorous standard of proof and many due process protections to ensure fairness.” She added that procedures proposed at her school in response to the Department of Education's mandate were "Orwellian.” Prof. Kevin Clermont said that “not all would characterize the procedure as Orwellian; some have used instead the term Kafkaesque.”

Even attorney Brett Sokolow, probably the most prominent victim's advocate on American campuses, has expressed concern that "a lot of colleges now are expelling and suspending people they shouldn’t, for fear they’ll get nailed on Title IX.” He, too, points out that the stakes are high for students expelled for sexual assault: expelled students no longer automatically have the option of just registering at another school. Nowadays, schools share information, which makes that problematic, so students who are expelled have a lot more at stake.

It is fair to conclude that UNC felt obliged to follow the Department of Education's mandate to lower the standard of proof. It could have adopted the Princeton alternative, which strikes a fair balance to serve the interests of both the accused and the accuser. It could have emulated Cornell, where there was a vigorous debate with prominent voices decrying the injustice of the standard before the school grudgingly accepting the Department of Education's directive. It could have followed Harvard's lead and resisted the Department of Education's change. Or it could have used the legal authorities marshalled by attorney Hans Bader to mount a legal challenge to this unjust administrative fiat.

Instead, UNC not only accepted the change, it embraced it. Amanda Claire Grayson, attorney general of UNC's Honor Court, bluntly explained that the change in the standard of proof will make it easier to find students guilty of sex violations since complainants now need less evidence to prove their case.

Jan Boxill, chairwoman of UNC's faculty executive committee, acknowledged the equally irrefutable point that sexual assault cases are difficult to prove. "It’s difficult for anyone to come to a conclusion because you come down to ‘he said, she said’,” Boxill said. "It will require some careful judgements.” But that difficulty doesn't seem to trouble her because she said the change will make the process more efficient. “It what’s best for our students,” she cryptically observed.

An editorial in the student newspaper, the Daily Tar Heel, applauded "easing up on the burden of proof" because that "will allow for harder crackdown on sexual assault cases." The editorial commended the school for "trying to . . . better protect the victims."

They've got it backwards. The fact that there is little evidence to prove sexual assault cases is never a valid justification to rig the process to make it easier to find the accused guilty. It is, rather, a compelling reason to be ever more vigilant of the dangers of wrongfully punishing an innocent man based on threadbare evidence.

The voices making themselves heard on this issue at UNC evince a shocking absence of appreciation for the critical balance every civilized society must strive to achieve: on the one hand, we must strive to eradicate heinous sex crimes by punishing offenders, and, on the other, we must insure that the innocent aren't punished with them. The entire emphasis of the UNC extremists is on the first half of that balance; the latter half seems never to have occurred to them. They blink at principles of fairness and due process that have informed Western Civilization's jurisprudence for centuries, including the principle that was famously expressed by the celebrated English jurist William Blackstone, who said it is "better that ten guilty persons escape than that one innocent suffer." (Commentaries on the Laws of England, 1765.) And that's the point that is most frequently misunderstood in the debate about the "Dear Colleague" letter: a wrongful acquittal is a terrible thing, but it is never the equivalent of a wrongful adjudication of guilt. The risk of getting it wrong is why the standard of proof has to be higher than "preponderance of the evidence."

When UNC recently decided that sexual assault cases will be handled by students, faculty and staff on the Student Grievance Committee instead of the student Honor Court, which handles all other alleged student disciplinary offenses, the Daily Tar Heel exclaimed: "In hearing cases of sexual assault, the needs of the victim should be given first priority." In addition, "the University community must therefore keep a critical eye on the implementation of the new policy to ensure victims are treated fairly by this system."

In fact, the "first priority" in any disciplinary hearing is to do justice. And both the accuser and the accused must be "treated fairly." The Daily Tar Heel seems less interested in seeing that justice is done than in insuring that every accuser's claim results in a finding a of guilt. By branding accusers as "victims," the Daily Tar Heel evidences an unbecoming gender bias, and does a disservice to UNC's student body, which rightfully expects fairness and impartiality in its college newspaper.

And incidentally, some in the UNC community expressed concerns about the biases of the Student Grievance Committee, but those concerns were quickly swept under the rug. Dean of Students Jonathan Sauls said internal bias in any case is not a bad thing, "it ensures there is a broad array of perspectives.” To put it charitably, this view is peculiar, not to mention diametrically opposed to principles long cherished by our jurisprudence, where even a whiff of bias is a cause for concern. But, then again, UNC's Student Grievance Committee, we are told, is an improvement over the American judicial system that was forged in the furnace of the common law over the course of centuries. “It’s going to have the elements of the judicial process, but it is also going to try to more effectively hear both sides of the story and give fairer rights to both parties,” said Student Attorney General Amanda Claire Grayson.

If all of this isn't sufficiently disconcerting, then consider the Daily Tar Heel's take on the school's new definition of "consent" -- whether a sober, reasonable person would have known that the complainant was incapacitated. What's the problem with that? The Daily Tar Heel's reaction is breathtakingly naive and would be laughable if it weren't for the dangers it poses to presumptively innocent men: "The definition of consent adopted is limited," it exclaims, "easily manipulated and depends wholly on the perspective of the accused or what the perspective of a rational person in their shoes would be. This is problematic for victims because it makes the definition of sexual assault more subjective."

Unfortunately, multiple readings won't clarify it. First, there is nothing "subjective" about the definition. Second, The Daily Tar Heel seems to think it is appropriate to require men to be mind readers, and for women to have the right to declare that they did not consent, regarardess of the fact that their words and outward manifestations of assent says they did. Our jurisprudence has long recognized that the only appropriate test for discerning if a party consents is whether a reasonable person in the position of the alleged rapist would have believed that the other party's words or outward conduct manifested consent. Consent can never be properly assessed by examining the subjective, undisclosed desires and whims of the party who supposedly manifested, or didn't manifest, consent. This is a principle so well-settled that the Daily Tar Heel's editorial only underscores how terribly unschooled in these matters its editorial writer(s) are.

The Daily Tar Heel isn't finished: "Under the new definition, a person can’t give consent if they suffer an intellectual disorder, if they are 'incapacitated' by drugs, alcohol or other impairing substances. . . . . While this is well-worded, one change is not as comforting. The new policy implies that alcohol consumption is not enough to preclude consent."

This is another absurdity scarcely worthy of rebuttal. All manner of substances and conditions can influence and impair one's decision-making capacity. To transmogrify into rape every sex act performed while one or both parties is in that condition would turn eons of settled law, not to mention human custom, on their heads. UNC men by the hundreds would be expelled each school year if this were the rule. The Daily Tar Heel tarnishes whatever credibility it might have had by positing puerile positions like this.

We are certain that there are many mature and rational voices at UNC who understand that these are serious issues worthy of a discussion more elevated than "always believe the accuser" and who are concerned about the critical balance referenced above. Too often, rational voices are deprived of a platform, or they are afraid to speak out. Unfortunately, the extremists will continue to drive the policy at UNC and on other U.S. campuses until the rational voices make themselves heard.

Wednesday, September 12, 2012

While there is no excuse for Mr. Lamboy to grab for the deputy's gun, and he certainly didn't appear to be a boy scout, a false allegation of sexual assault started the whole thing. A Taylors woman was charged with filing a false report about a sexual assault in connection with an incident involving two Greenville deputies who fatally shot a man at Red Roof in on Aug 13, a spokeswoman said.

Two Greenville County deputies shot and killed Anthony Lee Lamboy, 26, of Greenville, during a scuffle over a deputy’s gun, according to Sheriff Steve Loftis. Lamboy died at the scene, he said.

Sabrina Michelle Smith, 21, of 15 Birdsong Lane, was charged on Aug. 16, according to a warrants and Master Deputy Laura Campbell, a spokeswoman for the Greenville County Sheriff’s Office.

Deputies were responding to the motel at 2801 Laurens Road after a woman reported she had been sexually assaulted.

While questioning Lamboy in the motel parking lot about the assault case, deputies learned that Lamboy had outstanding warrants in Greenwood County, according to the Sheriff’s Office.

While placing Lamboy under arrest, he began to resist and a scuffle ensued and Lamboy was able to pull the trigger of a deputy’s gun while it remained in its holster, according to the Sheriff’s Office.

Tuesday, September 11, 2012

A judge in Arizona made outlandish comments to the woman who was sexually groped at a bar during the groper's sexual assault sentencing hearing. The judge told her that if "if you hadn't been there that night, none of this would have happened to you." This comes on the heels of a prominent priest's comment that boys who are sexually assaulted by priests are sometimes the seducers.

We can't expect people to be sympathetic to victims of wrongful accusations if we are not allied with victims of sexual abuse. The judge's comments were outlandish and wrong. It's perfectly acceptable to suggest that everyone should be vigilant about risky behavior, but sorry, judge, going to a bar doesn't cut it as risky behavior. And even if the woman had engaged in risky behavior (which she didn't), chiding the victim at a sexual assault sentencing hearing that she should have made better choices is never appropriate. Those sorts of comments only detract from the condemnation due the criminal.

A good example of that is found in this You Tube video. It contains portions of an episode of the Steve Wilkos show where the guests were three of the falsely accused men from the Hofstra false rape case. The video was put together by a men's rights activist who also comments on it. We reference the video here not to endorse the men's rights activist's view of the Hofstra case -- we've written extensively about that case here, and our post expresses our views on that case -- but because the video contains actual footage from the Wilkos show, which is chilling.

At around the 3:00 minute mark in the video, the men come out, and are booed by some members of the audience. At about the 4:50 minute mark, Wilkos asked why audience members booed the young men. An angry young women came to a microphone and exclaimed that she had been sexually assaulted, and that "it's not cool. And if you guys are lying about it, that's not right. I know what it's like. It's not cool." Her comments were greeted with applause. Wilkos is unsympathetic to the men. "Does that sound like a wholesome college experience?" Wilkos asks them, to applause. Later, one of the young men volunteered that they never should have gone to the party, to more applause. A male audience member stands up and says that he's gone to parties, and they don't have to end up having sex with a girl. The audience applauds again.

Wilkos says he's "not trying to be a prude," but the story of their encounter was "creepy." And "maybe if you held yourself to a higher level of conduct . . . ." And "doesn't that sound a little sleezy?" Wilkos then takes offense that one of the men was videotaping the encounter (the videotape, incidentally, is what led to their freedom), and asks one of the young men if he'd like it if someone did that to him. The audience applauds again. Another audience member stood up and expressed doubt about their innocence.

Finally, a young man stood up and said that he thought it was despicable that the men were booed, and that their personal lives were their business.

The Wilkos video is difficult to watch. Part of the audience's reaction seems to stem from the fact that Wilkos apparently didn't explain, in the clearest terms possible, that the Hofstra accuser not only recanted under oath but the circumstances of that recantation. It seems many in the audience weren't completely sure if the young men were truly innocent (they were), which likely accounted for some of the applause at their expense. But it seems equally clear that at least part of the audience's disdain for the men stemmed from the their views on the men's sexual conduct.

In contrast, when false rape victim Brian Banks recently appeared on the Tonight Show with Jay Leno, Brian related his false accuser's famous "let bygones be bygones" comment, and the audience audibly groaned. Mr. Leno treated Brian as a survivor and did not chide him as a moral miscreant for his sexual rendezvous with his false accuser in a high school stairwell. The audience's reaction mirrored Mr. Leno's respect for Brian. See here.

It is one thing to urge people not to engage in risky behavior. It's quite another to chide a victim at her assaulter's sentencing hearing for making bad choices when she didn't, or to insist that men falsely accused of rape should have treated their false accuser better.

Rape charges against a man were dropped because the accuser lied about important matters surrounding the alleged crime. Based on the news story below from the Buffalo News, the comment by assistant district attorney John A. Zucco -- that the revelations about the accuser's lied didn't affect the truth of the claim of rape -- was irresponsible in the extreme. Perhaps Mr. Zucco has information that the story doesn't report, and he is free to set the record straight on this thread. Based on the news story, we don't see how Mr. Zucco would know that this accuser was telling the truth. Was this charge brought because the accused has sex offenses on his record? Was there an assumption that "once a rapist, always a rapist"? Here is the news story:

LOCKPORT - Jon C. Martin, who faced a possible sentence of life in prison as an alleged sexual predator, was freed from Niagara County Jail last week after his accuser was unmasked as a liar.

Martin, 38, pleaded guilty Wednesday to a drug misdemeanor and was sentenced to time served - more than eight months since being accused of raping a woman in his home on the night of Dec. 20-21.

The woman consistently denied that she knew Martin well before that night, claiming she had only a "minor relationship" with him, according to Assistant District Attorney Robert A. Zucco. She also denied buying drugs from Martin or going to see him that night to obtain drugs.

But text messages and voice mails left on Martin's cellphone showed that the woman's statements were false, Zucco said.

The evidence was on Martin's phone, which he obtained from a property locker at the Niagara County Jail, Assistant Public Defender Christopher A. Privateer said.

"We weren't sure we were going to be able to use it to get the district attorney to give us a fair disposition. We thought we were going to have to use it at the trial," Privateer said.

However, County Judge Sara Sheldon Farkas ordered Privateer to turn the phone over to Zucco, who said the messages showed the woman was lying.

"These messages confirm the fact that the complaining witness lied at the grand jury, the preliminary hearing and the suppression hearing," Privateer said.

"It puts us in an untenable situation. She's lied about some crucial details," Zucco said in court. "It is now impossible for us to go forward with the charges in the indictment."

Thus, the charges of predatory sexual assault, first-degree rape and first-degree sexual abuse were dropped, and Martin was allowed to plead guilty to seventh-degree criminal possession of a controlled substance.

Zucco said the woman went to Martin's home that night to barter her cellphone for a supply of the painkiller hydrocodone, or to obtain forgiveness for past drug debts.

Zucco insisted the revelations didn't affect the truth of the claim of rape, but the woman would be deemed an unreliable witness in court.

"The physical evidence did not support the claim the complaining witness made against my client," Privateer argued. "My client continues to maintain there was no rape at the time of these transactions."

Zucco said the plea deal involved a pledge not to press further drug charges against Martin. He said the admissions of drug activity on the phone messages were vague.

Martin, who was convicted of sex offenses in Illinois and Georgia, and is serving a 15-year sentence for rape in the former state, will have to register as a sex offender in New York. Farkas is to rule Monday on what level of sex offender he will be considered.

Monday, September 10, 2012

I'm sure just about everyone here is familiar with the following video. If you want to see just how easy it is to make a false allegation of rape, and how quickly it can be done, watch. With two witnesses present she exhibits no hesitation or remorse. Luckily the man was recording video and not just audio.

Recently, the Navy Marine Corps Court of Appeals reversed a Marine's conviction of rape. The Marine was sentenced to 24 months in prison and a bad conduct discharge. A reversal like this is quite rare, as the Appellate Courts are loathe to substitute their judgement gleened from reading a record of trial to those panel members who saw the witnesses and were able to judge their credibility.

The facts in this case as portrayed in the opinion leads one to wonder why a prosecutor would prosecute this Marine in the first place. One possible explanation is over the past two years, the Department of Defense has faced an onslaught of criticism in how it prosecutes sexual assault offenses through the media, Congress, class action lawsuits, and a documentary that bemoan commanders who sweep sexual assault offenses under the rug and leave victims with little relief. The DoD has responded by taking steps to increase the number of prosecutions.

Another question is how on earth could a court martial panel convict a Marine under the facts portrayed in the opinion? It is important to understand the UCMJ court martial process. Each unit has a General Court Martial Convening Authority who is typically the Commanding General of the installation. These individuals are responsible for addressing issues regarding the good order and discpline of the members under their command, such as sexual assault awareness training, vehicle safety, DUI's, weapon safety, physical training safety, etc. They are also responsible for hand selecting court martial panel members who typically serve one or two years on a special detail who determine the guilt and sentence of Servicemembers who face court martial. The panel members know that the charges were reviewed by an Article 32 hearing officer who made a recommendation regarding the charges, then sent to the General who, after reviewing the charges with the Staff Judge Advocate, sent them to the panel for trial. These court martial panel members are usually senior officers and enlisted who know what the General expects of them; some of them are rated by the General on their Officer evaluation reports.

Having defended a fair number of Servicemen of sexual assault related charges, I believe that this Marine's failure to take the stand and deny the allegations led to his conviction. I believe that his sentence of only two years in prison and a bad conduct discharge supports my opinion because certainly a Marine who perpetrated such a vicious rape as described by his accuser should have received at least 10 years in prison and a dishonorable discharge. It appears to me that the there was reasonable doubt, but the panel members felt compelled to convict for reasons other than the admissible evidence in front of them that was highly questionable.

This opinion has been covered by other blogs, here, and here. In a post by Jim Clark, an instructor who trains Army prosecutors and defense counsel at the The Judge Advocate General's School, Mr. Clark criticizes the Court for falling "prey to a number of rape myths" and for being affected by cultural cognition.

Hopefully, readers of COTWA understand that the military justice system is an environment that is ripe for our Servicemen being wrongly accused and convicted. This Marine's prosecution flies in the face that the military is soft on sexual assault. Thankfully, the appellate courts have the authority to correct a wrongful conviction when it occurs. Unfortunately, the Serviceman usually has served a significant amount of time in prison before the appellate court can right the wrong.

Friday, September 7, 2012

This is a follow-up to our report on Max Nicastro, one of two Boston University hockey players to be accused of sexual assault during the last school year. The charges against Mr. Nicastro were dropped by the district attorney after what seemed to be an exhaustive investigation, and there is no basis, of which we are aware, to conclude that he committed sexual assault. The other player pled guilty to sexual assault.

A task force of professors and trustees from the university was charged with investigating the hockey team's culture, and it issued its report yesterday. The report said that the team has an "elevated social status" on campus, and the task force is shocked -- shocked! -- to find that frequent sex without a relationship or commitment is going on in hockey players' dorms!

The exact quote from the news story about the task report: ". . . the task force found that the team's 'elevated social status' on campus led to 'frequent sexual encounters with women absent an emotional relationship or ongoing commitment.'"

In fact, it would be more shocking to find that this wasn't the case. To suggest that this morally problematic culture is somehow unique to the Boston U men's hockey team, or that it isn't the sine qua non of the so-called "hook-up" culture on campus, is more than a stretch.

One of the responses to the task force's report will be to open a sexual assault center on campus and to institute of a sexual assault prevention education program for the hockey team.

We noted last June that Mr. Nicastro's case was rife with assumptions of guilt from the outset by some observers. We noted that intolerance of rape is a noble impulse but assuming the guilt of a man on the basis of an accusation alone is not. Now we are wondering if the entire hockey team is being maligned because of two allegations of sexual assault -- the one that resulted in a guilty plea, and Mr. Nicastro's case.

Did the task force conduct a study to tie the culture of frequent sex without commitment or relationship to an enhanced risk of sexual assault, or did it suggest a link for the sake of making it appear that Boston University is doing something about sexual assault on the men's hockey team?

With the sweeping stroke of a broad brush, such attitudes demonize young men and reduce them to caricature. Jessica Valenti, a once-prominent gender blogger and one of the purveyors of the maleness-is-broken crowd, has written: "Rape is part of our culture. It's normalized to the point where men who are otherwise decent guys will rape and not even think that it's wrong. And that's what terrifies me."

The attitude that rapists are just regular guys going to school doesn't ring true to the vast majority of just regular guys going to school. "Otherwise decent guys" don't so easily forget their decency. In contrast to the "even-decent-guys-rape" meme, feminist gadfly Amanda Marcotte recently wrote about the influential Lisak/Miller study that chronicled the typical rapist: he is not the otherwise decent guy next door, or just a regular guy going to school. He is a narcissistic man who enjoys forcing himself on women, a deviant whose attitudes are not "normalized" but are those of a social outlier. See here. Rapists on campus, as it turns out -- and which everyone other than the zealots already knew -- comprise only a small percentage of the male population, see here, and they account for 9 out of every 10 rapes. See here. Ms. Marcotte writes: "Far from being ordinary men who get out of control from lust, the roughly five percent of men interviewed who are rapists are men who seek out opportunities to rape women. . . . they pride themselves on their methods of identifying victims and separating them from potential help. They also eagerly explained how they avoided facing consequences, mainly by attacking drunk women. Rapists, it turns out, are acutely aware that if the victim was drinking, she’s much more unlikely to report it, and even if she does, the police are unlikely to do anything about it. As added protection against getting caught, most rapists attacked acquaintances, probably because they know that they can claim innocence, saying they thought she had consented." See here.

And Dr. Lisak connects the dots: de minimis sexual assault education, like the mandatory videos at the University of Montana, aren't going to stop these men. "These are clearly not individuals who are simply in need of a little extra education about proper communication with the opposite sex," he says. "These are predators." See here.

Rape is not "normalized." Telling college men not to rape accomplishes nothing, if Dr. Lisak is to be believed, because the vast majority of men simply would never commit this vile act, and the few who would are predators unaffected by such teaching methods. Yet at the University of Montana, every student is forced to watch videos warning women to be wary of anyone with a penis. This effort is misdirected and doesn't get at the real problem: sexual predators who use both alcohol and unsuspecting women to accomplish their vile plans. Any program wishing to significantly reduce sexual assault must focus on them.

The videos contain much information that is helpful, but too much of it is misleading, and some of it unjustly demonizes one gender and unnecessarily alarms another. It is especially troubling that more students, and more parents who are paying for their children to attend the university, are not better schooled in these issues. They would understand how far from the mainstream certain aspects of these videos really are.

A UNF student who claimed she had been sexually assaulted at the new UNF Wellness Complex has admitted she made up the story. The female UNF student originally said she had been sexually assaulted in the women's locker room of the Student Wellness Complex.

She has now told police she made the whole story up, according to a release from the school sent to students.

The University Police Department has charged her with filing a false police report.

The release said over the past year several students have filed false police reports.

The university is encouraging any students feeling overwhelmed or who otherwise are in need of guidance contact the University's on-campus resources available. These include the Counseling Center and the Women's Center.

Wednesday, September 5, 2012

According to the video series that all students at the University of Montana are required to watch in order to stay enrolled -- including the ones who will adjudicate sexual assault hearings -- the following is taught:

“The overwhelming majority of assaults, 82%, are perpetrated by acquaintances, friends, or family members who use coercion to assault. Coercion – pressuring, guilt tripping, intimidating – can be just as forceful and physically disempowering as physical violence.”

Punishing consensual sexual behavior obtained by supposed emotional or verbal “pressuring,” typically called “sexual coercion,” has its roots in an extremist tradition of rape advocacy that encourages purported victims to engorge the definition of “rape” to include all manner of alleged violations that are not “rape.” The problem is that it sanctions men not for forcing themselves on, or physically threatening, women, but for doing nothing more than nagging for sex. Men are being punished for doing precisely what, for decades, society has been telling them they’re supposed to do — ask for sex. But because they asked in way that was too boorish, too overbearing, or too insensitive, for the first time ever, men are being held responsible for sexual misconduct even though their “victims” have reasonable alternatives to engaging in the sex act but choose not to exercise them.The University of Montana is simply taking a page out of the playbook of NCHERM, the organization that advises colleges across America on their sexual misconduct policies. It has a model sexual misconduct policy, found here, that has been adopted in whole or in part by colleges across America. On page 9 is found an example of sexual coercion -- read it carefully:

Amanda and Bill meet at a party. They spend the evening dancing and getting to know each other. Bill convinces Amanda to come up to his room. From 11:00pm until 3:00am, Bill uses every line he can think of to convince Amanda to have sex with him, but she adamantly refuses. He keeps at her, and begins to question her religious convictions, and accuses her of being “a prude.” Finally, it seems to Bill that her resolve is weakening, and he convinces her to give him a “hand job” (hand to genital contact). Amanda would never had done it but for Bill’s incessant advances. He feels that he successfully seduced her, and that she wanted to do it all along, but was playing shy and hard to get. Why else would she have come up to his room alone after the party? If she really didn’t want it, she could have left. Bill is responsible for violating the university Non‐Consensual Sexual Contact policy. It is likely that a university hearing board would find that the degree and duration of the pressure Bill applied to Amanda are unreasonable. Bill coerced Amanda into performing unwanted sexual touching upon him. Where sexual activity is coerced, it is forced. Consent is not effective when forced. Sex without effective consent is sexual misconduct.

(Emphasis in original.)

In NCHERM’s example, Bill guilt-tripped Amanda to give him a hand-job — he asked, and she agreed. She willingly stayed in his room for hours, apparently listening to his boorish and pathetic entreaties. Amanda had a reasonable alternative to engaging in the sex act but chose not to exercise it: at any time she was free to say “good night” and to get up and leave. She didn’t do it. Bill is held responsible for Amanda’s choice.

It is important to emphasize that giving a horny college guy a hand-job because he wants it, or to shut him up, or because the woman wants to foster a relationship with him and sees that as a way to do it, is not sexual misconduct in any setting other than our college campuses. Bill seems to be a boorish, immature and selfish young man, but based on the limited information available in NCHERM’s example, he is not a rapist and shouldn’t be punished because he asked for sex in a way Amanda later decided was offensive.

Until now, the law has never been a clearinghouse to redress every less than ideal sexual encounter. Katie Roiphie once summed it up in a New York Times piece: “With their expansive version of rape, rape-crisis feminists are inventing a kinder, gentler sexuality. Beneath the broad definition of rape, these feminists are endorsing their own Utopian vision of sexual relations: sex without struggle, sex without power, sex without persuasion, sex without pursuit. If verbal coercion constitutes rape, then the word rape itself expands to include any kind of sex a woman experiences as negative.”

The University of Montana's policy, and NCHERM’s example, above, accomplish the seemingly impossible task of insulting both genders at once: they insult men by telling them they are akin to rapists even when they ask and get permission for sex, and they insult women by suggesting they are not free moral agents capable of saying “yes” when they want sex, and “no” when they don’t.

Fatal legal impediments

There are at least two fatal, insurmountable legal problems with this kind of “sexual coercion.” First, it punishes acts that are, by any rational standard, consensual. Second, prohibitions against sexual coercion do not pass due process muster because they are not sufficiently definite to warn the accused that he’s violated a policy.

Consent. Consent in the rape milieu has its roots in contract law, and it is there that we need to seek guidance. Not all agreements formed with apparent assent are legally binding. Duress is a common law concept employed to invalidate contracts due to the absence of the kind of freely-given consent that society has decided is necessary to bind people to their promises. The classic example is a loaded gun pointed at someone’s head with a threat that “either your brains or your signature will be on the contract,” per Don Corleone. A contract is voidable for duress if (1) the victim’s manifestation of assent has been induced by an improper threat, and (2) the victim has no reasonable alternative except to manifest assent.

The University of Montana's brand of “sexual coercion” fails on both counts. By any measure, asking for sex, even repeatedly, is not an improper threat, and being able to say “no” and to get up and leave the guy’s room is a reasonable alternative. End of inquiry. Big Sister needs to get out of the bedroom.

To illustrate how extreme the University of Montana's policy is, note that even legal scholars sympathetic to the feminist rape agenda accept the approach referenced above – because it is the only approach that works: “When a complainant believes that he or she does not have any alternative choice but to submit to unwanted sexual demands, even a verbal ‘yes’ does not necessarily indicate genuine consent.” M. Buchhandler-Raphael, The Failure of Consent: Re-Conceptualizing Rape as Sexual Abuse of Power, 18 Mich. J. Gender & L. 147, 183 (2011).

Due process. Our criminal law is not a guessing game. A valid criminal statute puts the public on clear notice as to the conduct that is forbidden. “A penal statute, . . . to be valid, must be sufficiently definite to show what acts the legislature intended to punish.” William Lawrence Clark et al, A Treatise on the Law of Crimes at 59 (1996). This is a component of due process. “The test is whether the language conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices.” Jordan v. DeGeorge, 341 U.S. 223 (1951). A law that does not meet that standard is unconstitutionally vague.

College sex policies should not be free-floating standards of purported wrongdoing and should never punish criminality “in the air.” Fundamental notions of fairness dictate that college rules of conduct be sufficiently definite to warn the accused when he’s in violation of them.

Look at NCHERM’s definition and decide for yourself if you can pinpoint when sexual coercion occurs. According to NCHERM’s Model Policy: “Consent cannot be procured by . . . coercion. Coercion is unreasonable pressure for sexual activity. Coercive behavior differs from seductive behavior based on the type of pressure someone uses to get consent from another. When someone makes clear to you that they do not want sex, that they want to stop, or that they do not want to go past a certain point of sexual interaction, continued pressure beyond that point can be coercive.” (Page 7)

The model policy further states: “There is a difference between seduction and coercion. Coercing someone into sexual activity violates this policy just as much as physically forcing someone into sex. Coercion happens when someone unreasonably pressures someone else for sex.” (Page 2)

Let us analyze. What does “unreasonable pressure” mean in a culture where sex roles of pursuer and “hard to get” have been fairly divided along gender lines for eons? Where women feel pressured, in Amanda Hess's words, to "defend their femininity" by saying no even when they want sex?

The guy can ask for sex, but he can’t ask too much, and he might be expelled if he crosses some indistinct, blurry line that’s about as clear as a dense New England fog. Does a “no” at 7:00 o’clock mean the topic of sex is off-limits? For how long? Until 10:00 o’clock? Midnight? The entire night? When does asking become nagging? At what point does a little nagging become excessive, unreasonable nagging? When will one more nag be enough to expel a young man? When does “seduction” magically turn into “coercion”? There is no mistaking midnight for noon, but at what point does twilight become night?

To say that the contours are fuzzy is an understatement. No one — no one — can be sure at what point the line is crossed. As a law, it is unworkable. As a policy, it is grossly unjust to men and it is insulting to both genders.

A policy bordering on pathology

The expansion of the definition of rape beyond all recognition has its roots in the gender-divisive extremism of radicals who preach a kind of gender get-evenism. Time Magazine once famously wrote: “Catherine Comins, assistant dean of student life at Vassar, . . . sees some value in this loose use of ‘rape.’ She says angry victims of various forms of sexual intimidation cry rape to regain their sense of power. ‘To use the word carefully would be to be careful for the sake of the violator, and the survivors don’t care a hoot about him.’ Comins argues that men who are unjustly accused can sometimes gain from the experience. ‘They have a lot of pain, but it is not a pain that I would necessarily have spared them. I think it ideally initiates a process of self-exploration. ‘How do I see women?’ ‘If I didn’t violate her, could I have?’ ‘Do I have the potential to do to her what they say I did?’ Those are good questions.’” Time correctly noted: “Taken to extremes, there is an ugly element of vengeance at work here. Rape is an abuse of power. But so are false accusations of rape . . . .” Seehere.

Writer Joanne Jacobs aptly explained: “In the largest survey of campus date rape, 43 percent of women classified as rape victims had not realized they’d been raped.” Was this because women were hesitant to label rape as a crime? “Hesitant to label rape a crime?” Ms. Jacobs scoffed. “No, they were hesitant to label having sex ‘when you did not want it because you were overwhelmed by continual arguments and pressure’ as rape, which is what happened to most of the ‘victims.’ They weren’t raped; they were nagged.”

Writer Sarah Overstreet once wrote: “Our college students need the tools of personal power and responsibility, not a false definition of rape. So do we all. Lacking the skills or confidence to resist verbal coercion doesn’t make it a crime.”

For decades we’ve preached that when a woman says “no,” the man must stop. Now the University of Montana is telling young men that when a woman says “yes,” they are still rapists because they didn’t ask in some indistinct politically correct manner. They've trivialized sexual assault to the point that women who truly do not have reasonable alternatives except to give in to sexual abuse are being lumped in with women who merely regretted the exercise of their own free will the morning after. At their core, these campus policies are premised on a smug, PC elitism that seeks to smack down what their purveyors regard as undeserved male privilege. They are making a statement that masculinity itself must be modified to make campuses less burdensome for the historically oppressed gender.

We have sadly reached the point where the University of Montana prefers to punish, by suspension or expulsion, boorish young men who convince women to have sex, rather than put the women through the bother of just saying “no” and walking away if they don't want to do it. And that is a policy bordering on pathology.